Are Blood Draws for Marijuana indicative of impairment?

I have always stated that the Washington State Marijuana DUI Per Se limit is baseless and does not have an iota of analysis to back it up.  The per se limit in Washington state is 5 ng/mL of whole blood of active THC.  That means if you are caught driving after smoking marijuana and have a blood level of 5 ng/mL of whole blood you are automatically (per se) guilty of DUI.

Recently a study was completed basing the results of some DREs (Drug Recognition Exams) and their correlation to blood draws when THC was used.  The researchers concluded, " Based on this analysis, a quantitative threshold for per se laws for THC following cannabis use cannot be scientifically supported." Basically the research shows the per se limit in Washington of 5ng/mL of whole blood is baseless or as they say, "it went up in smoke."

One interesting note was that in this study, on the walk and turn test (one of the standardized tests used to assist officers in making an arrest decision) 55.5% of the people who had not smoked at all passed it while only 6% of the marijuana smokers did, those that were drug free.  (Note: this means the 44.5% of sober people couldn't pass the walk and turn).  When the researchers compared the results to the various levels of THC found in the blood of those individuals who did smoke, there was no correlation to people with lower or higher THC levels doing better or worse.  Essentially they determined the roadside tests are superfluous when making a determination as to the impairment of someone suspected of smoking or ingesting marijuana and driving.

You can read the article here for further information.

Call us today if you have been arrested for a DUI in Washington State. (425) 522-4200.

New Marijuana DUI Laws explained.

Washington State's NEW Marijuana DUI Standards

Do you think it is illegal to smoke marijuana and then drive?  Well, it is not!  Seriously? Yes.  Just like alcohol (it is not illegal to consume alcohol and drive in Washington, or any state for that matter) driving after marijuana use is not illegal so long as the driver is not under the influence or affected by the marijuana or over the per-se (commonly referred to as the "legal limit") of 5 ng/mL of blood.

Every Washington State DUI case is affected by admissibility of tests to determine alcohol, but now the State of Washington's legislature has enacted a new portion of the DUI statute to crack down on Marijuana use while driving. Drivers suspected of marijuana use have always come under scrutiny and previously, when charged, the State could only speculate as to the "impairment" level of the driver. But now, there is a new legal standard for impaired drivers who have been driving while using marijuana, it is 5 ng/mL. How did the State come up with this standard? Who knows! There are no agreed treatises or studies of any sort which conclude that absolutely every driver is impaired at 5 ng/mL, but the State is using this "level" nonetheless. It is a per se level, so that means, even if you are a regular user of Marijuana in Washington State and are arrested for a Marijuana DUI, the prosecution only has to show that your blood results were 5 ng/mL and they get a conviction. There is no speculating as to whether that particular individual isn't impaired, they are presumed impaired even though there is no documentation (treatise, scientific studies, etc.) to establish this finding. I find this highly suspect and very concerning. My advice to anyone suspected of a Seattle Marijuana DUI is, don't drive at all after smoking marijuana.

 

Problems with Marijuana DUI Evidence

Numerous defense challenges to the results in Marijuana DUI cases are available, especially given the fact that there is no way to estimate how many tokes or puffs get someone to the "per se" level of 5 ng/mL. In breath test cases concerning alcohol there is a guideline (albeit from the 1930s) wherein you can estimate a BAC level (Widmark's formula). However, there is no such guideline for cannabis. In fact, numerous studies indicate that estimating marijuana impairment via plasma (i.e., a blood draw) is problematic and inconclusive. Nevertheless, the legislature will enact the 5 ng/mL standard level and you will be presumed guilty. Think also how this affects Medical Marijuana users. They are authorized to consume marijuana, but given there is no way to estimate what level they may reach after just a couple of puffs, this new DUI Marijuana (THC) law is essentially "no tolerance." It precludes the use because drivers are risking a criminal conviction even if they are using under the law!

 

Marijuana DUI - Cannabis DUI Advice

Seeing as how 5 ng/mL is such a low standard, with no apparent scientific standard for estimation or determination of impairment, it is best to just not drive at all after using marijuana. Also, considering the government put no effort into determining how different varieties of marijuana may affect individuals, it is advisable to find other transportation. This new statute and enactment by the government, in my humble opinion, is foolish, and without any true scientific conclusions it is draconian . I'm prepared to fight for you if you have been charged with a Seattle Marijuana DUI, Seattle Cannabis DUI or Washington State Marijuana DUI. In fact, my first "Not Guilty" DUI verdict was a case involving an allegedly impaired driver who was smoking marijuana! Contact us today to discuss your case!

 

Current Statue (RCW) on DUI - Drugs

RCW 46.61.502 Driving under the influence. (1) A person is guilty of driving while under the influence of intoxicating liquor, marijuana, or any drug if the person drives a vehicle within this state: (a) And the person has, within two hours after driving, an alcohol concentration of 0.08 or higher as shown by analysis of the person's breath or blood made under RCW 46.61.506; or (b) The person has, within two hours after driving, a THC concentration of 5.00 or higher as shown by analysis of the person's blood made under RCW 46.61.506; or (c) While the person is under the influence of or affected by intoxicating liquor, marijuana, or any drug; or (d) While the person is under the combined influence of or affected by intoxicating liquor, marijuana, and any drug. (2) The fact that a person charged with a violation of this section is or has been entitled to use a drug under the laws of this state shall not constitute a defense against a charge of violating this section.

 

THEREFORE, even if you are legally consuming, smoking marijuana, you are subjected to arrest for driving a motor vehicle afterward.

 

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About the author:

Nathan Webb, is a seasoned Seattle DUI Lawyer.  His practice emphasizes DUI defense.  He has been repeatedly recognized as one of Seattle's Best Attorneys! He was recognized as a Top Seattle DUI Attorneys by Seattle Met Magazine, Repeatedly named a Super Lawyer Rising Star in the area of DUI Defense by Washington Law and Politics Magazine, and Rated Superb for DUI Defense (10.0 out of 10.0) by Avvo.com.